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filed: June 7, 1985.


Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County, No. 3339, November, 1982.


John Packel, Chief, Appeals, Assistant Public Defender, Philadelphia, for appellant.

Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Cavanaugh, Wieand and Montgomery, JJ. Cavanaugh, J., files a dissenting opinion.

Author: Wieand

[ 344 Pa. Super. Page 201]

Stephen Mills was tried by jury and was found guilty of burglary. It was his eighth conviction for the same offense. The trial judge, the Honorable James D. McCrudden,

[ 344 Pa. Super. Page 202]

    deferred sentencing pending receipt of a presentence investigation and a psychiatric evaluation. Thereafter, Mills was sentenced to serve a term of imprisonment for not less than ten nor more than twenty years. A petition for reconsideration was denied, and Mills appealed. He contends that the sentence exceeded that recommended by the sentencing guidelines, as set forth in 204 Pennsylvania Code, Chapter 303, without adequate reason. We disagree and affirm the judgment of sentence.

Appellant and the Commonwealth are agreed that the gravity score for appellant's offense is six; his burglary was committed in a structure adopted for overnight accommodations in which no person was present at the time of the offense. Two additional points are to be added for each prior offense. 204 Pennsylvania Code, Chapter 303.7(b)(2)(ii). The maximum number of points for prior convictions, however, is six.*fn1 204 Pennsylvania Code, Chapter 303.7(h). For a defendant with an offense gravity score of six and a prior record score of six, the guidelines recommend an aggravated minimum sentence of between 49 and 61 months and a mitigated minimum sentence of between 25 and 33 months.

Appellant concedes, as he must, that a sentencing court may deviate from the sentencing guidelines if it provides a contemporaneous written statement of its reasons for doing so. The adequacy of the court's reasons, of course, is subject to review on appeal. Commonwealth v. Royer, 328 Pa. Super. 60, 476 A.2d 453 (1984). In the instant case the sentencing court did provide a contemporaneous statement of reasons for imposing a sentence in excess of that recommended by the guidelines. Appellant argues, however, that the court's reasons were inadequate. He contends that, in reality, the only reason given by the sentencing court was that appellant had had seven prior convictions for burglary. This, he argues, demonstrated an

[ 344 Pa. Super. Page 203]

    erroneous application of the guidelines and an unreasonable departure therefrom.

We reject appellant's argument. The reasons given by the sentencing court for imposing the maximum sentence authorized for burglary entailed a great deal more than the fact of seven prior convictions for burglary. The court explained:

Mr. Mills, I have considered the presentence report, the psychiatric evaluation. I know what the guidelines suggest in this.

But I think with your extensive record for burglaries and the fact that you just served a fairly severe sentence for burglary, and even after being released by the authorities, and while still on parole for that very offense of burglary, you go right ahead and burglarize another house.

Probation hasn't helped. Even lengthy incarceration hasn't helped. You have complete disregard for people who own property. You don't hesitate for one minute to violate that in their homes. I think you have to be incarcerated and incarcerated for the maximum period of time.

I'm imposing a sentence of 10 to 20 years.

Included in this statement, as the Commonwealth has argued, can be discerned the following reasons for imposing a sentence greater than that recommended by the sentencing guidelines. First, appellant was a repeat offender, having accumulated a record of seven prior convictions for the same offense. Second, all prior attempts to rehabilitate Mills had been unsuccessful. Third, Mills had been on parole when he committed the offense for which he was then being sentenced. Fourth, because Mills had established a pattern of disrespect for the homes and property of other persons, he had become a threat to the public. Finally, on the occasion of the sentence for the seventh offense, Mills had previously received a sentence of imprisonment for not less than three nor more than ten years. These

[ 344 Pa. Super. Page 204]

    reasons were adequate to support the ten to twenty year sentence imposed by the court.

We also disagree with appellant's contention that irrespective of the number of prior convictions, a burglar can receive only that sentence prescribed for a three time offender.*fn2 To read the guidelines as placing a cap on the sentence to be imposed upon a career criminal is to encourage absurd results. In the first place, such an interpretation will for all practical purposes reduce the maximum sentence authorized by statute for the crime of burglary. A burglar who has seven, or ten, or twenty prior convictions for burglary will have to be sentenced as though he had only three prior convictions. This, we conclude, was not what the legislature intended. Secondly, it is difficult to perceive any reason more compelling for imposing a sentence in excess of that recommended by the guidelines than the fact of convictions for repetitive offenses committed even after release on parole from a lengthy sentence of incarceration. What, it may well be asked, is more persuasive that a career criminal has become a serious threat to society than the lengthy record which he has complied

[ 344 Pa. Super. Page 205]

    while refusing to be rehabilitated? The guidelines do not establish mandatory sentences; they are recommendations only. Where societal protection commands a lengthier sentence, the guidelines do not stand as a bar.

In the instant case, the trial court sagely recognized that it was sentencing a career criminal who had become a menace to society. It was for this reason that the court imposed a sentence of incarceration for the maximum term allowed by the legislature.

The judgment of sentence is affirmed.

CAVANAUGH, Judge, dissenting:

I respectfully dissent. It is my belief that the holding in the instant case, if permitted to stand, will render the sentencing guidelines virtually meaningless. The rationale underpinning the holding is contrary to the letter and spirit of the guidelines and conflicts with precedent recently established in this court. The judgment of sentence in the instant case should be vacated and the case remanded for resentencing because the sentencing court failed to consider the guidelines before imposing sentence as it is required to do by statute. Alternatively, even if it be assumed that the court considered the guidelines, its reasons for deviating therefrom are wholly inadequate, thus necessitating remand.

The sentencing guidelines were promulgated in order to promote greater state-wide uniformity in sentencing. Although the guidelines were not meant to establish mandatory minimum sentences, 42 Pa.C.S. § 9721(b) requires that courts consider the guidelines before imposing sentence. By so legislating, it was the General Assembly's hope that the guidelines would weave rationality out of a sometimes chaotic criminal sentencing system wherein it was not uncommon that persons with similar prior records who were convicted of identical offenses would be given very dissimilar sentences simply because they were sentenced in different

[ 344 Pa. Super. Page 206]

    courts. As former Pennsylvania House Member (now Judge) Scirica succinctly stated when he co-introduced the enabling legislation for the guidelines:

We are amending a Senate bill, and this amendment changes the way we sentence criminals in Pennsylvania. The purpose of the amendment is to make criminal sentences more rational and consistent, to eliminate unwarranted disparity in sentencing, and to restrict the unfettered discretion we give to sentencing judges.

Pennsylvania House Journal, 3130 (September 21, 1978). Mr. Scirica also stated that "[i]t is the appeal that gives teeth to the guidelines." Pennsylvania House Journal, supra, at 3131.

The guidelines are a means of promoting more equitable sentences by providing a common point of reference for all cases. The guidelines ensure that the same information is used in the same way as a starting point in reaching every sentencing decision. They are, thus, a tool to promote fairer, more certain sentences, and to discourage unwarranted disparity.


42 Pa.C.S. § 9721(b) states: "The [sentencing] court shall. . . consider any guidelines for sentencing adopted by the Pennsylvania Commission on Sentencing . . . ." (Emphasis added.) The obligation to consider the guidelines prior to sentencing can in no way be regarded as discretionary. Although the court is not constrained to follow the guidelines, if it chooses not to, it must "provide a contemporaneous written statement of the reason or reasons for the deviation from the guidelines." 42 Pa.C.S. § 9721(b). In Commonwealth v. Royer, 328 Pa. Super. 60, 69, 476 A.2d 453, 457 (1984) we held that "the judge's statement of reasons for the sentence made of record at sentencing in the defendant's presence constitutes a 'contemporaneous written statement', within the meaning of the act." In Royer, we clearly established that our power of review in

[ 344 Pa. Super. Page 207]

    guidelines cases includes discerning whether or not the sentencing court's reasons for deviating are "adequate".

Importantly, the guidelines suggest only ranges for minimum and not maximum sentences. Maximum sentences are limited only by statute. For example, for the crime of burglary, a felony of the first degree, the statutory maximum is not more than twenty years. 18 Pa.C.S. § 1103(1). Statutory law does not mandate a minimum sentence for this offense.

The guidelines, set forth in 204 Pennsylvania Code, Chapter 303, found at 42 Pa.C.S. § 9721, group offenses into ten different categories.

Offense Prior Aggravated Mitigated

Gravity Record Minimum Minimum Minimum

Score Score Range * Range * Range *


0 48-120 Limit *** 36-48

10 Statutury

1 54-120 Limit *** 40-54


2 60-120 Limit *** 45-60


Third Degree Murder ** 3 72-120 Limit *** 54-72


4 84-120 limit *** 63-84


5 96-120 Limit *** 72-96


6 102-120 Limit *** ...

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